Some Observations on Calls for Senate Reform: Part One of a Two-Part Series

VIKRAM DAVID AMAR

In this first of a series of columns, Illinois Law dean and professor Vikram David Amar offers four observations about recent calls for reform of the filibuster device in the U.S. Senate. Dean Amar suggests looking at state experiences with supermajority rules, as well as the Senate’s own recent past, and he considers why senators might be reluctant to eliminate the filibuster. He concludes with a comment on President Joe Biden’s suggestion that the Senate return to the “talking filibuster” and praises a suggestion by Senator Tom Harkin (D-IA) that the cloture requirement (currently at 60 votes) could be lowered gradually, the longer a measure under consideration is debated.

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Fund Liquidation Holdings LLC v. Bank of America Corp.

Court: US Court of Appeals for the Second Circuit

Docket: 19-2719

Opinion Date: March 17, 2021

Judge: Richard J. Sullivan

Areas of Law: Business Law, Civil Procedure

Article III is satisfied so long as a party with standing to prosecute the specific claim in question exists at the time the pleading is filed. If that party (the real party in interest) is not named in the complaint, then it must ratify, join, or be substituted into the action within a reasonable time. Only if the real party in interest either fails to materialize or lacks standing itself should the case be dismissed for want of subject-matter jurisdiction. Two Cayman Islands investment funds filed a class action in 2016, alleging that numerous banks had conspired to manipulate certain benchmark interest rates. A year later, the banks discovered that the two plaintiff funds had been dissolved years earlier, and that the case was actually being prosecuted by a separate entity, Fund Liquidation. Fund Liquidation maintains that it was assigned the dissolved entities' claims, but the district court dismissed the case with prejudice. The Second Circuit vacated, concluding that although the dissolved funds lacked standing at the time the case was commenced, Article III was nonetheless satisfied because Fund Liquidation, the real party in interest, has had standing at all relevant times and may step into the dissolved entities' shoes without initiating a new action from scratch. The court explained that its precedent and Article III does not require application of the nullity doctrine. Accordingly, the court remanded for further proceedings.

International Technologies Marketing, Inc. v. Verint Systems, Ltd.

Court: US Court of Appeals for the Second Circuit

Docket: 19-1031

Opinion Date: March 16, 2021

Judge: Richard J. Sullivan

Areas of Law: Civil Procedure

A court need not wait until it is defrauded before it may impose monetary sanctions on a party who knowingly prosecutes a frivolous claim in bad faith. That remains true even if the misbehaving litigant made only a single misrepresentation to the court. In this contract dispute, plaintiff appealed the district court's dismissal of its breach of contract claim and denial of its request for leave to file a fourth amended complaint. Defendant cross-appealed the denial of the district court's motion for sanctions related to plaintiff's misrepresentations to the district court during the litigation. The Second Circuit vacated the district court's order denying sanctions and remanding for further proceedings. The court concluded that the district court misconstrued the court's precedent regarding the court's inherent power to impose sanctions – which makes clear that even a single bad-faith filing may warrant monetary sanctions, regardless of whether that conduct actually misled the court. The court affirmed in all other respects in a separately filed summary order.

Kinsey v. New York Times Co.

Court: US Court of Appeals for the Second Circuit

Docket: 20-1304

Opinion Date: March 15, 2021

Judge: Jose A. Cabranes

Areas of Law: Civil Procedure, Civil Rights, Communications Law, Constitutional Law

The Second Circuit affirmed the district court's dismissal of plaintiff's complaint against the New York Times. Plaintiff alleged defamation based on the Times's print and online articles about gender bias, favoritism, and groping at the Justice Department. The article details a Times investigation into a series of complaints, using records derived from an EEOC complaint and a sex discrimination and retaliation suit. One of the declarations described an incident between plaintiff and an intern. Plaintiff alleged that the language from this declaration was false and defamatory per se and that the fair report privilege did not apply. The court concluded that the district court performed the proper choice-of-law analysis, applying New York law to the conflict; correctly reasoned that New York was the state with the most significant interests in the litigation and applied New York's fair report privilege; and then properly dismissed plaintiff's complaint as barred by the fair report privilege because the alleged defamatory statement was attributed to an official proceeding.

O'Hanlon v. Uber Technologies Inc

Court: US Court of Appeals for the Third Circuit

Docket: 19-3891

Opinion Date: March 17, 2021

Judge: Krause

Areas of Law: Arbitration & Mediation, Civil Procedure

Motorized-wheelchair users filed a purported class action, alleging that Uber discriminated against individuals with mobility disabilities by not offering a “wheelchair accessible vehicle” (WAV) option in the Pittsburgh area, citing the Americans with Disabilities Act (ADA), 42 U.S.C. 12181. They argued that but for the unavailability of WAVs, Plaintiffs would download the Uber app and use its ridesharing service. Uber moved to compel arbitration under the Federal Arbitration Act, 9 U.S.C. 3–4, contending that although Plaintiffs had never registered for an Uber account or accepted its Terms of Use, they were nevertheless bound by the mandatory arbitration clause of that agreement; Plaintiffs could not establish standing to sue in federal court unless they “step into the shoes” of actual Uber Rider App users. The Third Circuit affirmed an order denying Uber’s motion. Plaintiffs’ failure to download the Uber app, agree to the terms and perform the “futile gesture” of requesting a WAV ride did not prevent them from pleading an injury in fact. Plaintiffs’ disability discrimination claim did not rely on or concerncUber’s Terms of Use, but was based on the ADA. On interlocutory appeal from the denial of a motion to compel arbitration, appellate jurisdiction is confined to review of that order; the court has no independent obligation to review non-appealable orders, even jurisdictional ones concerning standing.

Snyder's-Lance, Inc. v. Frito-Lay North America, Inc.

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-2316

Opinion Date: March 17, 2021

Judge: James Andrew Wynn, Jr.

Areas of Law: Civil Procedure, Intellectual Property, Trademark

The waiver language in 15 U.S.C. 1071 relates only to the choice of review options for the decision appealed from. The Fourth Circuit held that a party seeking review of a subsequent Trademark Board decision may seek review in either the Federal Circuit or the district court, even if the Trademark Board's initial decision was reviewed by the Federal Circuit. In this case, the parties' dispute concerns the registration of the mark "PRETZEL CRISPS." Plaintiff sought to register the mark in 2004, but the trademark examiner denied registration. Plaintiffs reapplied for registration in 2009, but Frito-Lay opposed the registration and argued that "PRETZEL CRISPS" was generic for pretzel crackers and not registrable. The Trademark Board sided with Frito-Lay in 2014. Plaintiffs opted for the section 1071(a) route and appealed the Trademark Board's 2014 decision to the Federal Circuit. The Federal Circuit agreed with plaintiffs in 2015, remanding to the Trademark Board. On remand in 2017, the Trademark Board again concluded that "PRETZEL CRISPS" was generic, and alternatively concluded that "PRETZEL CRISPS" lacked distinctiveness. Plaintiffs sought review of the Trademark Board's 2017 decision, but the district court dismissed the case without prejudice for lack of subject matter jurisdiction. The Fourth Circuit reversed the district court's judgment dismissing the case for lack of subject matter jurisdiction and remanded for further proceedings. The court explained that the statutory text of the Lanham Act, while ambiguous, favors plaintiffs' argument in favor of jurisdiction. Furthermore, this conclusion is bolstered by legislative history, the court's sister circuits' holdings in similar cases, and policy considerations. The court remanded for further proceedings.

Franco v. Mabe Trucking Co., Inc.

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-30316

Opinion Date: March 18, 2021

Judge: James L. Dennis

Areas of Law: Civil Procedure

Plaintiff filed suit in Texas district court against Mabe after plaintiff was involved in a car accident with a truck owned by Mabe and operated by a Mabe employee. The accident occurred in Louisiana, a few miles from its border with Texas. Although the Texas district court concluded that Mabe lacked sufficient contacts with Texas to subject the company to personal jurisdiction in the state, the Texas district court found that it was in the interests of justice not to dismiss the case and instead transferred it to the United States District Court for the Western District of Louisiana, which was the federal district court sitting in the district in which the accident occurred. The Louisiana federal district court concluded that plaintiff's claims were time-barred and granted summary judgment for Mabe. The Fifth Circuit reversed and remanded, concluding that 28 U.S.C. 1631 permitted the Texas district court to transfer this case to the Louisiana district court for lack of personal jurisdiction; the provisions of section 1631 apply irrespective of the Texas district court's invocation of 28 U.S.C. 1406(a); section 1631, which was specifically designed to protect federal litigants from the forfeiture that could result from a statute of limitations running after a plaintiff's mistakenly filing an action in a court that lacks jurisdiction if the interests of justice so demand, neither runs afoul of the Erie doctrine and the Rules of Decision Act it effectuates nor transgresses constitutional bounds; and section 1631 is therefore the standard against which the Louisiana district court should have measured whether the action had been timely filed in that court, and its application must necessarily precede that of the Louisiana Civil Code articles. Applying section 1631, the court accepted that plaintiff is deemed to have filed his suit in the Louisiana district court on November 22, 2016, the date he actually filed suit in the Texas district court. Therefore, plaintiff must be deemed to have filed his claim "in a court of competent jurisdiction and venue" on that date and thereby interrupted the one-year prescriptive period under Louisiana law. Accordingly, the Louisiana district court erred by granting Mabe summary judgment on the basis that plaintiff's claim was time-barred.

Dunne v. Resource Converting, LLC

Court: US Court of Appeals for the Eighth Circuit

Dockets: 19-2982, 19-3170, 19-3271

Opinion Date: March 17, 2021

Judge: Erickson

Areas of Law: Business Law, Civil Procedure, Contracts

After plaintiff purchased licenses for RCI non-thermal, pulverizing, and drying system technology (PAD), he alleged that the capabilities of the PAD System were misrepresented to him. Two federal law suits were filed, one in Iowa and one in Missouri. In this consolidated appeal, the Eighth Circuit affirmed the Iowa judgment, rejecting RCI's argument that it is entitled to judgment as a matter of law because the jury awarded no compensatory damages. The court concluded that punitive damages were recoverable under Iowa law because the jury necessarily found that plaintiff suffered actual damages when it found fraudulent misrepresentation. Furthermore, the jury could award punitive damages without an award of compensatory damages, and the punitive award was not unconstitutionally excessive. The court also concluded that plaintiff is not entitled to equitable relief and the district court neither erred or abused its discretion as to plaintiff's equitable counterclaims. Finally, the court found that the method used and reasons given by the district court for the reduction in costs were well within its discretion, and the district court did not abuse its discretion in awarding attorney fees. The court remanded the Missouri judgment for further proceedings, concluding that the district court erred by applying federal law, rather than Iowa law, to determine whether plaintiff's claim was precluded. The district court also erred by determining that Missouri law on the economic loss doctrine would bar plaintiff's misrepresentation claims. The court also noted that plaintiff's conspiracy claim should be reinstated and the district court's attorneys' fee award to Resource as the prevailing party is set aside.

PDVSA US Litigation Trust v. Lukoil Pan Americas, LLC

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-10950

Opinion Date: March 18, 2021

Judge: Jordan

Areas of Law: Civil Procedure, Trusts & Estates

In a case involving an alleged multi-billion-dollar conspiracy to defraud the Venezuelan state-owned oil company known as PDVSA, the Trust filed suit alleging that it had authority to do so as an assignee of PDVSA pursuant to a trust agreement which, through a choice-of-law clause, is governed by New York law. The district court adopted in part the report and recommendation of the magistrate judge and dismissed the action without prejudice under Federal Rule of Civil Procedure 12(b)(1) for lack of Article III standing. The district court determined that the Trust did not properly authenticate the trust agreement and, even if the trust agreement were authenticated and admissible, it was void as champertous under New York law. The Eleventh Circuit assumed without deciding that the Trust made out a prima facie case of authenticity for the trust agreement at the Rule 12(b)(1) proceedings and that the district court erred by ruling that the trust agreement was inadmissible. The court concluded that, based on its review of the record, the district court may have erred procedurally in definitively resolving the question of champerty at the Rule 12(b)(1) stage because that question likely implicated the merits of the Trust's claims. However, the court concluded that the Trust does not make this procedural argument on appeal and therefore has abandoned any procedural obligations to the champerty ruling. On the merits, the court applied the champerty bar to the trust agreement under New York law in light of Justinian Capital SPC v. WestLB AG, 65 N.E.3d 1253, 1255 (N.Y. 2016), and concluded that the Trust's primary purpose in acquiring PDVSA's claims was to bring this action. Accordingly, the court affirmed the dismissal of the complaint.

Smith v. Bokor

Court: US Court of Appeals for the Eleventh Circuit

Docket: 18-14797

Opinion Date: March 12, 2021

Judge: Branch

Areas of Law: Civil Procedure, Class Action

Three plaintiffs, seeking to represent a putative class of 3,000 nursing facility residents, filed a class action complaint against (MMI) and its president in Florida state court. After defendants removed to the district court, the district court removed back to state court under the Class Action Fairness Act (CAFA). The Eleventh Circuit reversed and remanded for further proceedings, concluding that the district court erred in finding that the evidence was sufficient to establish that two-thirds of the putative class were Florida citizens. The court explained that the studies, surveys, and census data that plaintiffs provided, which do not directly involve plaintiffs in this case, are not sufficient to establish that a certain percentage of the plaintiff class are citizens of Florida. The court agreed with the district court's conclusion that plaintiffs satisfied the "significant defendant" requirement in 28 U.S.C. 1332(d)(4)(A)(i)(II)(aa). Because the court found that plaintiffs failed to meet the local controversy exception's state citizenship requirement, however, the district court erred in remanding this matter to state court. Finally, to the extent that the remand order was based on the discretionary exception, the district court erred in failing to find that MMI is a primary defendant and not a Florida citizen.

Kapur v. Federal Communications Commission

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 20-1047

Opinion Date: March 16, 2021

Judge: Walker

Areas of Law: Civil Procedure, Communications Law, Government & Administrative Law

The Kapurs invested $300,000 in KAXT-CD, a Bay Area TV station, for 42% ownership in the Seller. In 2013, over the Kapurs' objections, the Seller proceeded with a $10.1 million sale of assets to First Buyer, which applied for the station’s FCC license. The Kapurs opposed that application, arguing that arbitration concerning the sale was ongoing. The arbitrator found that the sale did not require unanimity. The Kapurs unsuccessfully appealed in California state court and pressed on at the FCC, attacking the First Buyer’s qualifications under the “public interest” standard. The FCC concluded that the Kapurs’ allegations did not warrant a hearing and approved the application. In 2017, First Buyer sold the station to TV-49, Inc. for $2 million. The Kapurs opposed TV-49’s FCC license assignment application, arguing that First Buyer lacked the qualifications to buy the “license in the first place.” They did not challenge TV-49’s qualifications. The FCC approved the application. The D.C. Circuit dismissed an appeal for lack of standing. Even if the Kapurs prevailed on their claim of entitlement to a character hearing, they have not shown any likelihood that the FCC would find that First Buyer was of bad character or, even if it did, that it would order the unwinding of both sales and return of the station to the Seller. Nothing would stop the Seller from selling to someone else.

DePuy Synthes Products, Inc. v. Veterinary Orthopedic Implants, Inc.

Court: US Court of Appeals for the Federal Circuit

Docket: 20-1514

Opinion Date: March 12, 2021

Judge: Timothy B. Dyk

Areas of Law: Civil Procedure, Intellectual Property, Patents

The parties compete in the market for veterinary orthopedic implants. DePuy sued VOI, alleging patent infringement. The district court entered the parties’ joint proposed protective order, designating certain information as “Confidential Material” and “Highly Confidential Material—Attorney Eyes Only.” The information designated “Highly Confidential” encompassed “supplier . . . names and identifying information.” DePuy filed under seal an unopposed motion for leave to amend the complaint to join as a defendant the manufacturer of VOI’s accused products, disclosing the manufacturer’s identity and information about the business relationship between the manufacturer and VOI. According to VOI, the manufacturer identity and other information are Highly Confidential and constitute trade secrets, so that it was necessary to file the amended complaint under seal, with only a redacted version publicly available. DePuy argued that the manufacturer’s public website advertises its business; that VOI and the manufacturer have no confidentiality agreement; that the manufacturer ships its products to VOI using a public carrier; and that a third party was aware that the manufacturer supplied products to VOI. The district court ordered that the amended complaint be filed on the public record without redaction of either the manufacturer's identity or other information. The order did not specifically analyze the other information. The Federal Circuit affirmed. The district court did not abuse its discretion in performing its obligation to ensure public access to court documents.

Ex parte Encompass Health Corporation.

Court: Supreme Court of Alabama

Docket: 1190797

Opinion Date: March 12, 2021

Judge: Tommy Bryan

Areas of Law: Civil Procedure

Encompass Health Corporation, formerly known as HealthSouth Corporation ("HealthSouth"), petitioned the Alabama Supreme Court for a writ of mandamus to direct the the trial court to vacate an order entered June 17, 2020, which amended a February 26, 2016 dismissing with prejudice several defendants in the underlying action, to dismiss those defendants without prejudice. The underlying action was initiated in March 2003 by Steven Nichols, a former employee of HealthSouth and a holder of HealthSouth stock; Nichols initially sued HealthSouth, Richard Scrushy, Weston Smith, William Owens, and the accounting firm Ernst & Young, alleging fraud and negligence. The action was delayed for eleven years "for a variety of reasons," during which Nichols filed several amended complaints. By his eighth amended complaint, only HealthSouth was named as a defendant. At the same time, Nichols filed a "motion to dismiss [the] individual defendants without prejudice." In that motion, Nichols "specifically reserve[d] all claims against HealthSouth ... based upon respondeat superior and vicarious liability theories." The trial court entered an order providing that the eighth amended complaint controlled, that HealthSouth was the only remaining defendant in the action, and that there were now no claims asserted against any of the other defendants named in the previously filed complaints. HealthSouth then moved to dismiss the eighth amended complaint, arguing, among other things, that "the claims asserted in that complaint were derivative in nature rather than direct and were therefore due to be dismissed" based on Nichols's failure to comply with the demand-pleading requirements of Rule 23.1, Ala. R. Civ. On this case's first trip to the Alabama Supreme Court, the Court held the claims in the eighth complaint related back to the original, and thus, were not barred by the statute of limitations. After remand and further discovery, HealthSouth again moved to dismiss, arguing that Nichols' claims were based on representations made by a former agent, and that agent was dismissed with prejudice earlier in these proceedings. In response, Nichols asked the trial court to amend its order to reflect he had specifically reserved his right to proceed against HealthSouth. HealthSouth's motion was ultimately denied, and it petitioned the Supreme Court for mandamus relief. The Supreme Court determined the trial court violated the Supreme Court's mandate when it amended a February 2016 order that dismissed the individual defendants with prejudice. Therefore, the Court concluded HealthSouth demonstrated a clear legal right to mandamus relief.

Ahtna, Inc. v. Alaska, Department of Transportation & Public Facilities, et al.

Court: Alaska Supreme Court

Docket: S-17496

Opinion Date: March 12, 2021

Judge: Carney

Areas of Law: Civil Procedure, Government & Administrative Law, Native American Law, Real Estate & Property Law, Zoning, Planning & Land Use

The State of Alaska claimed the right under Revised Statute 2477 (RS 2477) to clear land and permit the use of boat launches, camping sites, and day use sites within an alleged 100-foot right of way centered on a road on land belonging to an Alaska Native corporation, Ahtna, Inc. Ahtna sued, arguing that its prior aboriginal title prevented the federal government from conveying a right of way to the State or, alternatively, if the right of way existed, that construction of boat launches, camping sites, and day use sites exceeded its scope. After years of litigation and motion practice the superior court issued two partial summary judgment orders: (1) holding as a matter of law that any preexisting aboriginal title did not disturb the State’s right of way over the land; and (2) holding as a matter of law that the right of way was limited to ingress and egress. To these orders, the Alaska Supreme Court concluded the superior court did not err, therefore affirming both grants of partial summary judgment.

Creekside Limited Partnership, et al. v. Alaska Housing Finance Corporation

Court: Alaska Supreme Court

Docket: S-17517

Opinion Date: March 12, 2021

Judge: Daniel E. Winfree

Areas of Law: Civil Procedure, Government & Administrative Law, Government Contracts, Zoning, Planning & Land Use

A project developer that used state-allocated federal tax credits for a low-income housing project sued the state housing authority, asserting an option to eliminate a contractual obligation to maintain the project as low-income housing for 15 years beyond the initial 15-year qualifying period. The superior court granted summary judgment in favor of the housing authority, and the developer appealed several aspects of the court’s ruling. After review of the superior court record, the Alaska Supreme Court concluded that court correctly interpreted the relevant statutes and contract documents, and correctly determined there were no material disputed facts about the formation of the parties’ agreements.

Bichai v. Dignity Health

Court: California Courts of Appeal

Docket: F078658(Fifth Appellate District)

Opinion Date: March 12, 2021

Judge: Donald R. Franson, Jr.

Areas of Law: Civil Procedure, Labor & Employment Law

Plaintiff filed suit against two hospitals before the first hospital issued a final decision in the peer review proceeding addressing his reapplication. Plaintiff alleged multiple claims, including retaliation in violation of Health and Safety Code section 1278.5, a whistleblower provision that protects healthcare workers who advocate for medically appropriate care of a patient. The trial court sustained the demurrer filed by the first hospital, the hospital where plaintiff's reapplication privileges was pending. The Court of Appeal affirmed and concluded that plaintiff's claims against that hospital for unfair competition and conspiring with the second hospital to violate section 1278.5 failed to allege facts sufficient to constitute a cause of action. The court explained that, in this case, the hospital had yet to take any adverse action against plaintiff and his reapplication for privileges. Furthermore, the medical staff is a separate legal entity and, thus, its recommendation to deny plaintiff's reapplication is not an act of wrongdoing by the hospital. Therefore, the cause of action against the hospital had not yet accrued.

Collondrez v. City of Rio Vista

Court: California Courts of Appeal

Docket: A159246(First Appellate District)

Opinion Date: March 16, 2021

Judge: Petrou

Areas of Law: Civil Procedure, Communications Law, Government & Administrative Law, Labor & Employment Law

Rio Vista Officer Collondrez responded to a hit-and-run accident. According to an internal affairs investigation, Collondrez falsified his report, arrested a suspect without probable cause, used excessive force, applied a carotid control hold on the suspect, and failed to request medical assistance. After hearings, the city agreed to pay Collondrez $35,000. Collondrez resigned. The agreement provides that Collondrez's disciplinary reports will only be released as required by law or upon legal process issued by a court of competent jurisdiction, after written notice to Collondrez. Penal Code section 832.71 was subsequently amended to require the disclosure of police officer personnel records concerning sustained findings of dishonesty or making false reports. The city responded to media requests under the Public Records Act for records, giving Collondrez prior notice of only some of the disclosures. Media outlets reported the misconduct allegations. His then-employer, Uber, fired Collondrez. Collondrez sued. The trial court partially granted the city’s to strike the complaint under California’s anti-SLAPP statute, Code of Civil Procedure 425.16, finding that Collondrez had shown a probability of prevailing on his claims for breach of contract and invasion of privacy but not on claims for interference with prospective economic advantage and intentional infliction of emotional distress. The court of appeal reversed in part, in favor of the city. The complaint arises from speech protected by the anti-SLAPP statute, but the trial court erred in finding Collondrez established a likelihood of prevailing two counts.

Contreras-Velazquez v. Family Health Centers of San Diego, Inc.

Court: California Courts of Appeal

Docket: D075577(Fourth Appellate District)

Opinion Date: March 18, 2021

Judge: Judith McConnell

Areas of Law: Civil Procedure, Civil Rights, Labor & Employment Law

Rosario Contreras-Velazquez (Velazquez) sued her former employer, Family Health Centers of San Diego, Inc. (Family Health), alleging disability discrimination and related causes of action after she suffered a work-related injury and Family Health terminated her employment. A jury found Family Health not liable, but the trial court ordered a new trial as to three of Velazquez’s causes of action after finding the evidence was insufficient to support the jury’s verdict—a ruling, the Court of Appeal affirmed in a prior appeal. After retrial, a jury found in favor of Velazquez. The jury awarded her $915,645 in compensatory damages and $5 million in punitive damages. However, the trial court granted in part a motion for judgment notwithstanding the verdict (JNOV) and reduced the punitive damages award to $1,831,290 (a 2:1 ratio of punitive to compensatory damages). The court reasoned a punitive damages award equal to twice the compensatory damages award was the maximum amount permissible under the due process clause of the Fourteenth Amendment to the United States Constitution. Family Health appealed, contending certain special verdict findings returned by the first jury estopped Velazquez from prevailing at the retrial under the issue preclusion doctrine. Family Health also appealed the JNOV order on the basis that the reduced punitive damages award remained grossly excessive in violation of Family Health’s due process rights. The Court of Appeal concluded the first jury’s special verdict findings did not constitute a final adjudication of any issue and, therefore, the trial court correctly ruled that the issue preclusion doctrine did not require entry of judgment in Family Health’s favor. Further, the Court concluded the trial court properly reduced the punitive damages award to an amount equal to twice the compensatory damages award—and no further. Therefore, both the judgment and the JNOV order were affirmed.

Gilman v. Dalby

Court: California Courts of Appeal

Docket: C066930(Third Appellate District)

Opinion Date: March 12, 2021

Judge: Cole Blease

Areas of Law: Civil Procedure

The judgment creditors in this case obtained, per Code of Civil Procedure section 708.410, a lien on “[t]he rights of [the] judgment debtor to money or property under any judgment” in a certain lawsuit. In the course of that suit, the judgment debtor paid money to another party pursuant to an adverse judgment, but, following reversal of that judgment, the trial court ordered that money to be returned to the judgment debtor. The issue this case presented for the Court of Appeal's review was whether the judgment creditors’ lien attached to the money ordered returned to the judgment debtor. Unlike the Court of Appeal concluded it potentially did, though the Court found further factual review was required to resolve the issue. The trial court's decision was reversed in part and remanded for reconsideration.

Vendor Surveillance Corporation v. Henning

Court: California Courts of Appeal

Docket: D076079(Fourth Appellate District)

Opinion Date: March 18, 2021

Judge: Dato

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law

Vendor Surveillance Corporation (VSC) appealed an adverse judgment in its action seeking refund unemployment insurance taxes assessed by the California Employment Development Department (EDD). The outcome turned on whether project specialists hired by VSC between January 1, 2011 and December 31, 2013 (the audit years) were classified as employees or independent contractors. The issue presented by this appeal was one of first impression: whether in making that determination, the trial court should apply (1) the ABC test announced in Dynamex Operations W. v. Superior Court, 4 Cal.5th 903, (2018); or instead (2) the Borello factors (S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal.3d 341 (1989). "With little case law for guidance and an eye on appeal," the trial court analyzed the evidence alternatively under each standard and determined that project specialists were VSC’s employees. The Court of Appeal held that Borello provided the applicable standard in assessing unemployment insurance taxes during the audit years. Because the court’s findings under that standard were supported by substantial evidence and its qualitative weighing of the Borello factors was an appropriate exercise of the court’s discretion, the Court of Appeal affirmed.

Wilson v. The La Jolla Group

Court: California Courts of Appeal

Docket: D077134(Fourth Appellate District)

Opinion Date: March 12, 2021

Judge: Guerrero

Areas of Law: Civil Procedure, Class Action, Labor & Employment Law

Plaintiffs Mosanthony Wilson and Nancy Urschel brought a putative wage-and-hour class action against defendant The La Jolla Group (LJG). Plaintiffs worked for LJG as signature gatherers on behalf of political campaigns and political action committees. LJG classified them as independent contractors and paid them per signature submitted. In the underlying lawsuit, plaintiffs alleged that LJG misclassified them and, as employees, they were entitled to a minimum wage, overtime pay, meal and rest breaks, expense reimbursement, timely final wage payment, and itemized wage statements. Plaintiffs moved for certification of a class of LJG signature gatherers, which the trial court denied. Plaintiffs appealed the order denying class certification, contending the trial court erred by finding common questions did not predominate and the class action procedure was not superior to individual actions. They also contended the court erred by not granting a related motion for reconsideration. After review, the Court of Appeal agreed that on the current record, the trial court erred by declining to certify a class for one cause of action, for failure to provide written and accurate itemized wage statements. The Court therefore reversed the order denying class certification in part, as to that cause of action only, and remand for reconsideration. Otherwise, the Court concluded the trial court did not err and affirmed.

Cham et al. v. ECI Management Corp. et al.

Court: Supreme Court of Georgia

Docket: S20G0601

Opinion Date: March 15, 2021

Judge: Warren

Areas of Law: Civil Procedure, Personal Injury, Real Estate & Property Law

Plaintiffs, the surviving spouse of Franklin Callens and the administrator of his estate, sued defendants, the owner and manager of an apartment complex where Callens was killed during an armed robbery. Plaintiffs alleged that Defendants were negligent in failing adequately to secure their premises from criminal activity. Defendants prevailed at trial, and Plaintiffs appealed, contending, in relevant part, that the trial court erred in giving a jury instruction on the law applicable to “licensees” in premises liability cases. The Court of Appeals affirmed the trial court's judgment on that issue. The Georgia Supreme Court granted certiorari review on the issue of whether the trial court erred in charging the jury on what duty a landowner owed a licensee, when there was evidence showing that plaintiffs' decedent was a guest of a lawful tenant of the landowner. The Supreme Court found the trial court did not err in charging the jury, and therefore affirmed the appellate and trial courts.

Ciolino v. Simon

Court: Supreme Court of Illinois

Citation: 2021 IL 126024

Opinion Date: March 18, 2021

Judge: Rita B. Garman

Areas of Law: Civil Procedure, Communications Law

Northwestern University’s Medill School of Journalism’s “Innocence Project” sought to exonerate Porter for two 1982 murders. Ciolino, a private investigator working with the Project, obtained a videotaped confession from Simon. Porter’s conviction was vacated. Simon pleaded guilty to the murders and was sentenced to 37 years in prison. Porter’s exoneration is regarded as the impetus for the Illinois death penalty moratorium. The tactics Ciolino used to obtain Simon’s confession came under scrutiny. It was alleged that Ciolino promised Simon that he would secure an attorney, Rimland, to represent him. Rimland shared office space with Ciolino and did not challenge Simon’s confession or present other evidence to the court. Ekl began representing Simon and filed a successive post-conviction petition asserting actual innocence. Two witnesses recanted their statements, indicating that those statements were induced by promises made by the Project. The circuit court vacated Simon’s convictions after Simon had served 15 years in prison. In 2015, Crawford published a book, Justice Perverted: How the Innocence Project … Sent an Innocent Man to Prison, which inspired the documentary at issue—Murder in the Park, in which Ekl allegedly made defamatory statements concerning Ciolino. Ciolino’s suit, alleging defamation, false light invasion of privacy, intentional infliction of emotional distress, and civil conspiracy, was dismissed as barred by the one-year statute of limitations. Except as against one defendant, the appellate court reversed. The Illinois Supreme Court affirmed the reinstatement of the claims against Ekl. Because the screenings of the documentary each constituted a separate publication of the allegedly defamatory material, the single-publication rule does not apply. Following the documentary's Chicago screening, Ciolino timely filed his complaint.

Williams v. City of Batesville

Court: Supreme Court of Mississippi

Citation: 2019-CA-01300-SCT

Opinion Date: March 18, 2021

Judge: Beam

Areas of Law: Civil Procedure, Government & Administrative Law, Real Estate & Property Law

Sherry Williams sued the City of Batesville, Mississippi for negligence in maintaining its sewer system after her home and property were flooded by raw sewage. The circuit court granted the City’s summary-judgment motion, finding the City immune from suit. After review, the Mississippi Supreme Court determined that because Williams could possibly prove a set of facts under the MTCA for actions by the City that were not exempt from immunity, therefore the circuit court erred in dismissing the claims of basic negligence. Furthermore, the Court held the trial court erred by granting judgment in favor of the City as to the Williams' inverse-condemnation claim. The matter was remanded for further proceedings.

Hazel v. Blitz U.S.A., Inc.

Court: South Carolina Supreme Court

Docket: 28016

Opinion Date: March 17, 2021

Judge: Few

Areas of Law: Civil Procedure, Personal Injury, Products Liability

On November 5, 2010, James Nix poured kerosene from a gasoline can onto a burn pile in his yard. The kerosene ignited, and the flame entered the gas can through its unguarded pour spout. The gas can exploded and sprayed kerosene and fire onto Nix's five-year-old son Jacob, who was standing only a few yards away. Jacob suffered severe burn injuries to over 50% of his skin and was permanently scarred. Blitz U.S.A., Inc. manufactured the gas can. Blitz distributed the gas can involved in Jacob's injury through Fred's, a retail store chain headquartered in Tennessee. Fred's sold the gas can to a consumer at its store in the town of Varnville, in Hampton County, South Carolina. The explosion and fire that burned Jacob occurred at Nix's home in Hampton County, South Carolina. In 2013, Jacob's aunt Alice Hazel, his legal guardian, and Jacob's mother Melinda Cook, filed separate but almost identical lawsuits in state court in Hampton County seeking damages for Jacob's injuries. Both plaintiffs asserted claims against Blitz on strict liability, breach of warranty, and negligence theories. Both plaintiffs asserted claims against Fred's for strict liability and breach of warranty based on the sale of the allegedly defective gas can. Both plaintiffs also asserted a claim against Fred's on a negligence theory based only on Fred's negligence, not based on the negligence of Blitz. This is the claim important to this appeal, referred to as "Hazel's claim." Petitioner Fred's Stores of Tennessee, Inc. contended the circuit court erred by refusing to enjoin these lawsuits under the terms of a bankruptcy court order and injunction entered in the bankruptcy proceedings of Blitz U.S.A., Inc. The South Carolina Supreme Court found the circuit court correctly determined the bankruptcy court's order and injunction did not protect Fred's from these lawsuits. The matter was remanded back to the circuit court for discovery and trial.

Ralph v. McLaughlin

Court: South Carolina Supreme Court

Docket: 28015

Opinion Date: March 17, 2021

Judge: Per Curiam

Areas of Law: Civil Procedure, Real Estate & Property Law

This action involves a dispute stemming from the removal of a drainage pipe running across neighboring properties. The pipe was part of an easement originally owned by the Seabrook Island Property Owners Association (SIPOA) and was intended to carry away stormwater from a road within the community, with a pipe running through the backyard portions of seven contiguous lots. Over the years, the pipe degraded and began draining standing water from the backyards of those seven lots. Nearly twenty years later, SIPOA installed a new drainage system for the road. At a property owner's request, SIPOA formally abandoned the easement, though the old, degraded pipe remained in place. Petitioners Paul and Susan McLaughlin later purchased one of the seven lots containing the old drainage pipe (Lot 22). After years of meetings and consultation with SIPOA and their neighbors, Petitioners removed the pipe and built a new house over the area in which the pipe was previously located. Respondents Richard and Eugenia Ralph owned the parcel next door to Petitioners (Lot 23). Following removal of the old pipe, Respondents claimed their backyard flooding became worse that it already was and sued Petitioners. A jury awarded Respondents $1,000 in "nominal" damages, and they appealed. The Court of Appeals reversed and remanded for a new trial on damages alone. The South Carolina Supreme Court reversed, finding the trial court did not err in any respect, thus reversing the appellate court's decision.